Russell, Judge.
The plaintiff introduced in evidence over the defendant’s objection a capped Coca-Cola bottle containing a chain of beads, testimony regarding which was that it was purchased from a Coca-Cola vending machine, had not been opened, and the foreign substance was in it at the time of purchase, which the court admitted for the sole purpose of showing that the inspection machines used by the defendant were not infallible. The objection was then made that the bottle had not been traced back to this defendant, since it had on it the inscription “Made for Gainesville Bottling Plant” and there was no testimony from which it could be determined where the bottling had actually been done. In the absence of evidence tend[59] ing to show that it was in fact bottled at the defendant’s plant and that its condition and contents were unchanged since leaving the defendant’s control, the admission of the bottle as real evidence constituted reversible error. Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573 (190 SE 879); Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61 (2) (114 SE2d 517).
“Where an action is brought to recover damages for an injury caused by the explosion of a bottle, the contents of which were manufactured, bottled, and sold by the defendant as a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant’s possession.” Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 SE 1087); Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573, supra. The Supreme Court has held similarly, in a case involving a foreign substance, that there must be evidence to authorize the jury to find that the bottle was in the same condition as when it left the manufacturer’s control. Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, supra. It is thus established that before any inference of negligence on the part of the defendant could arise, there must have been sufficient evidence that the bottle which exploded had not been subjected to negligent handling or treatment, nor the condition or contents thereof changed since leaving the defendant manufacturer’s control.
The evidence most favorable to the defendant was that there were two Coke machines over which the plaintiff had control, one upstairs, next to which he worked, and another one, the one he was loading at the time of the alleged explosion, located downstairs; that he had seen defendant’s deliveryman unload Cokes about 60—75% of the time since he worked next to the one upstairs; that the only place available to store the crates of Cokes for the downstairs machine was on the cement floor adjacent to the machine, which location was close to a main stream of traffic of heavy skids of paper and other materials; that an employee who worked near the downstairs Coke machine had never seen the defendant deliver the Cokes there since a [60] door blocked his view; that although the bottles did not usually stay there long, because of the location and the printing company’s policy of keeping the way clear, sometimes the defendant probably left more Cokes than would go into the machine and some of them might have remained on the floor overnight; that Cokes which would not go into the rotating drum of the machine were stored in a storage drawer underneath until there was room for them in the drum.
In the Chancey case, the Supreme Court characterized as a “sound statement of the doctrine of res ipsa loquitur and its applicability” the following from Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 SE 542): “Just as in civil cases facts are proved by a mere preponderance of the evidence, so in the application of this doctrine, if in the opinion of the jury the most reasonable and most probable inference which can be drawn from the nature and character of such an extraordinary event is that it would not and could not have happened had not the defendant been guilty of the particular conduct charged, then there has been an exclusion in their minds of every other reasonable hypothesis, not by evidence, but by virtue of the peculiar nature and character of the event speaking for itself” and citing with approval Augusta R. &c. Co. v. Weekly, 124 Ga. 384 (52 SE 444).
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Russell, Judge.
The plaintiff introduced in evidence over the defendant’s objection a capped Coca-Cola bottle containing a chain of beads, testimony regarding which was that it was purchased from a Coca-Cola vending machine, had not been opened, and the foreign substance was in it at the time of purchase, which the court admitted for the sole purpose of showing that the inspection machines used by the defendant were not infallible. The objection was then made that the bottle had not been traced back to this defendant, since it had on it the inscription “Made for Gainesville Bottling Plant” and there was no testimony from which it could be determined where the bottling had actually been done. In the absence of evidence tend[59] ing to show that it was in fact bottled at the defendant’s plant and that its condition and contents were unchanged since leaving the defendant’s control, the admission of the bottle as real evidence constituted reversible error. Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573 (190 SE 879); Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61 (2) (114 SE2d 517).
“Where an action is brought to recover damages for an injury caused by the explosion of a bottle, the contents of which were manufactured, bottled, and sold by the defendant as a harmless beverage, an inference of negligence on the part of the manufacturer arises, when it is shown that all the persons through whose hands the bottle had passed were free from fault, and that the condition of the bottle and its contents had not been changed since it left the defendant’s possession.” Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762 (73 SE 1087); Macon Coca-Cola Bottling Co. v. Crane, 55 Ga. App. 573, supra. The Supreme Court has held similarly, in a case involving a foreign substance, that there must be evidence to authorize the jury to find that the bottle was in the same condition as when it left the manufacturer’s control. Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, supra. It is thus established that before any inference of negligence on the part of the defendant could arise, there must have been sufficient evidence that the bottle which exploded had not been subjected to negligent handling or treatment, nor the condition or contents thereof changed since leaving the defendant manufacturer’s control.
The evidence most favorable to the defendant was that there were two Coke machines over which the plaintiff had control, one upstairs, next to which he worked, and another one, the one he was loading at the time of the alleged explosion, located downstairs; that he had seen defendant’s deliveryman unload Cokes about 60—75% of the time since he worked next to the one upstairs; that the only place available to store the crates of Cokes for the downstairs machine was on the cement floor adjacent to the machine, which location was close to a main stream of traffic of heavy skids of paper and other materials; that an employee who worked near the downstairs Coke machine had never seen the defendant deliver the Cokes there since a [60] door blocked his view; that although the bottles did not usually stay there long, because of the location and the printing company’s policy of keeping the way clear, sometimes the defendant probably left more Cokes than would go into the machine and some of them might have remained on the floor overnight; that Cokes which would not go into the rotating drum of the machine were stored in a storage drawer underneath until there was room for them in the drum.
In the Chancey case, the Supreme Court characterized as a “sound statement of the doctrine of res ipsa loquitur and its applicability” the following from Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 SE 542): “Just as in civil cases facts are proved by a mere preponderance of the evidence, so in the application of this doctrine, if in the opinion of the jury the most reasonable and most probable inference which can be drawn from the nature and character of such an extraordinary event is that it would not and could not have happened had not the defendant been guilty of the particular conduct charged, then there has been an exclusion in their minds of every other reasonable hypothesis, not by evidence, but by virtue of the peculiar nature and character of the event speaking for itself” and citing with approval Augusta R. &c. Co. v. Weekly, 124 Ga. 384 (52 SE 444).
In Crane, thanks not only to an excellent opinion by Judge Sutton, but as well to an excellent dissent by Judge Felton, it appears that a verdict for the plaintiff was upheld against the same arguments here put forward and under almost identical evidence. There was evidence in that case that the defendant bottled over 10,000,000 Coca-Colas per year; that they were subject to exceedingly stringent testing and none exploded, that all bottles had to withstand a pressure of 750 pounds per square inch (the evidence in this case is 500 to 800 pounds p.s.i.). There was evidence that the bottles could not have been tampered with until left on the premises of the retailer. As to the possibility of tampering with' the bottles later, it was shown that the crates had been left by the defendant on the retailer’s premises, placed under a counter, and left there over night (unaccounted for). The time lag in the case here under consideration is con[61] siderably less; as shown by the following: “A. The Coca-Cola man came from the back . . . and unloaded the Coca-Colas for the machine downstairs . . . and then he came directly upstairs and left the Cokes back at the machine there and came on across the room which is open to where I work and I paid him for whatever Cokes he left and he had the bills with him. I would go directly from there downstairs, which is where the press room is to get the Cokes up out of the way of moving the printed matter and the .skids of paper that was coming in. Q. What did you do on this particular day, March 14? A. I had opened the Coke machine. Q. Well, had you gone through this same process on this particular day? A. Yes, Sir, I had.” In reply to the hypothesis that because the delivery man only left as many cases of bottles as there were empty cases of bottles to remove, there might have been a case of bottles present which had been in the location longer than a few minutes, the obvious answer is that the witness testified that the cases were stacked waist high, and that the bottle which exploded in his hand was removed from the top crate. Obviously, a left-over crate lying on the floor would not have been in the top position. In this case, as in Crane, the defendant’s undisputed evidence was that the bottles were subject to rigorous inspection, that they were in perfect condition when delivered to the premises on which they were sold, and that therefore the injury, if caused by negligence, was due to the negligence of someone other than itself. But in Crane the bottles were subjected to greater pressure control than here, and, after arriving on the marketing premises were left overnight, instead of just a few minutes. On its facts, then, Crane settles the question that res ipsa is involved in this case. The same conclusion, although factually not so strong, is to be found in Payne v. Rome Coca-Cola Bottling Co., 10 Ga. App. 762, supra, Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, supra, Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43, supra; Atlanta Coca-Cola Bottling Co. v. Shipp, 41 Ga. App. 705 (154 SE 385) and Atlanta Coca-Cola Bottling Co. v. Dean, 43 Ga. App. 682 (160 SE 105).
Did the uncontradicted evidence of the defendant as to the care which is used in bottling its beverages thereafter cause the [62] presumption of negligence which was raised in the jury’s mind by the application of the doctrine to disappear as a matter of law, or did it remain a jury question as to whether the explanation of the defendant as to its lack of negligence was to be accepted? In other words, was the inference wiped out as a matter of law by evidence which neither traced this particular bottle (as opposed to the care used in bottling generally) nor suggested any other reason for the injury? It appears that, while there is admittedly a difference of opinion in some jurisdictions as to the effect of such evidence, both in Georgia and under decisions of the United States Supreme Court the matter remains for the jury. As to Georgia, without analyzing all the cases dealing with the doctrine, the exact point was raised and decided in Crane, supra, where the defendant’s evidence was a little weaker than it is here. This is shown by Judge Felton’s statement in his dissent. He states (55 Ga. App. 598): “The question to be decided is whether the rule of res ipsa loquitur would be applicable as a final proposition, in view of the uncontradicted evidence of the defendant negativing negligence on its part or showing that the injury could reasonably have occurred without its negligence.” And again (p. 604): “The majority seems to be of the opinion that after a prima facie case is made, the burden is on the defendant to prove that he was not negligent, or to prove that the accident was ‘occasioned by vis major or by other causes for which he was not responsible.’ I do not think that is the law.” The majority opinion (p. 582) sums up the case: “It is not shown that the defendant, as was its burden to do, established any vis major or external causes for which it was not responsible.”
This accords with Terminal Railroad Assn. of St. Louis v. Staengel, 122 F2d 271 (136 ALR 789), where, in a judgment of affirmance, the court held: “The inquiry is whether all the evidence here is so conclusive as to lack of negligence by defendant that, under the above rules of decision, a verdict should have been directed. If so, the evidence must furnish ‘an explanation’ (San Juan Light & Transit Co. v. Requena . . . 224 U.S. 99, 32 SC 401, 56 LE 680) of the occurrence which is so compelling that no verdict to the contrary should be allowed to stand.”
[63] The defendant here made no effort to explain why the bottle burst. It did not contradict the fact that it did burst. It contented itself with relying upon a showing of lack of negligence on its part. This explanation did not convince the jury. In the absence of any other explanation, the question of lack of negligence on the part of the defendant, regardless of the cogency of its evidence, remained for the jury and not for the court to decide. The general grounds of the motion for a new trial and special grounds 4, 5, 9 and 10 are without merit.
A careful reading of Turner v. Turner, 186 Ga. 223 (2) (197 SE 771, 116 ALR 1396) and the citations therein contained supports the proposition that while it is not error in the absence of a request to instruct the jury on a contention of one of the parties which although supported by evidence is not raised by the pleadings, the converse is also true as a general rule; that, is, where the request is pertinent and material, and goes to an issue made by the evidence it should be given in charge although it may not have been specifically raised by the pleadings in the case. See also Warwick Long Leaf Co. v. Zorn, 95 Ga. App. 344 (1) (98 SE2d 62). Some issues of course cannot be raised except by virtue of special pleading, but in general under Code Ann. § 70-207, if the request is legal, pertinent, and requested in writing it should be given. An instruction in a res ipsa case that should the jury believe neither the defendant nor the plaintiff to have been negligent, and believe that both parties exercised ordinary care, then the occurrence is what the law designates an unavoidable accident requiring a verdict for the defendant, is both legal and pertinent. Slaughter v. Atlanta Coca-Cola Bottling Co., 48 Ga. App. 327 (172 SE 723). The instruction requested in special ground 12 should have been given in charge, and the failure to do so was error.
(a) All the remaining assignments of error which have been argued by counsel for the plaintiff in error deal with the failure of the trial court to give certain principles of law to the jury in the language requested. Since negligence, like any other fact, may be established by circumstantial as well as by direct evidence, Georgia Coast &c. R. Co. v. Smith, 22 Ga. App. 332, (95 SE 1017), special grounds 7, 14, and 16 contain an erro[64] neous statement of the law. As was stated in Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (2a) (64 SE 93): “Where the physical facts surrounding an occurrence are such as to create a reasonable probability that the occurrence—and the consequent injury—-resulted from negligence, the physical facts themselves are evidential, and may or may not furnish evidence of the particular negligence alleged.” One of the propositions contained in special ground 8, that “if the subsequent accident did not result entirely from such negligence . . . there could be no recovery” is obviously inaccurate. Special grounds 11 and 13 might have been confusing to the jury in the form in which requested, as they might be interpreted in such manner as to read the doctrine of res ipsa loquitur out of the case.
(b) However, the objections which may be urged against grounds 11 and 13 do not apply to the request contained in special ground 15, which states in part: “If you find that the defendant has used ordinary care there can be no recovery. The mere fact that the bottle burst would not authorize you to find a verdict against the defendant unless you further find that the defendant was negligent, that is, lacking in care in one or more ways set out in the petition. If it has not been satisfactorily shown to you what caused the bursting or explosion of the bottle in question, and if the cause remains a mystery to you, unless it has been shown to your satisfaction that the bottle burst because of the alleged negligence of the defendant, there can be no recovery,” and which also contained the statement that manufacturers of foodstuffs are not insurers of their products, should have been given in charge on request. See Palmer Brick Co. v. Chenall, 119 Ga. 837, 842 (47 SE 329).
The trial court erred in overruling the motion for a new trial as amended.
Judgment reversed.
Eberhardt, J., concurs. Felton, C. J., concurs specially.